State v. Mitchell , 262 N.C. App. 344 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-29
Filed: 6 November 2018
Mecklenburg County, No. 14 CRS 202289
STATE OF NORTH CAROLINA
v.
STANLEY MELVIN MITCHELL
Appeal by defendant from judgment entered 6 October 2017 by Judge Carla
Archie in Mecklenburg County Superior Court. Heard in the Court of Appeals 22
August 2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Olga
Vysotskaya de Brito, for the State.
Richard Croutharmel for defendant.
ELMORE, Judge.
Defendant Stanley Melvin Mitchell entered an Alford guilty plea to robbery
with a dangerous weapon following the trial court’s denial of his motions to suppress
evidence obtained from a search of his home as well as evidence of his identification
by the robbery victim. Pursuant to the terms of his plea agreement with the State,
defendant appeals the denial of his two motions. We affirm.
I. Background
STATE V. MITCHELL
Opinion of the Court
On 17 January 2014, Officers Nicole Saine and Marvin Francisco of the
Charlotte-Mecklenburg Police Department (CMPD) responded to a report of domestic
violence at the home defendant shared with his girlfriend, Kristy Fink. In addition
to reporting the domestic violence incident, the 9-1-1 caller had further alleged that
Ms. Fink suspected defendant of being involved in the armed robbery of a Game Stop
store a few days prior to the incident.
The officers knocked on the front door upon arriving at the home, and
defendant and Ms. Fink eventually answered and exited the home together.
Pursuant to CMPD policy, the officers then separated defendant and Ms. Fink for
questioning. Officer Saine remained outside the home with defendant, while Officer
Francisco entered the home with Ms. Fink after being authorized by her to do so.
Inside the home, Ms. Fink confirmed that she had been assaulted by
defendant; she also corroborated the 9-1-1 caller’s allegation by telling Officer
Francisco that the incident began when she confronted defendant about the robbery.
Ms. Fink then led Officer Francisco to the shared upstairs bedroom to view
potentially incriminating evidence she had found prior to the incident, which included
money and clothing that matched the description of the robbery suspect’s clothing.
When Officer Saine entered the home at defendant’s request for warmer clothing
while he waited outside, Ms. Fink gave her the same information she had given
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Opinion of the Court
Officer Francisco. The officers subsequently obtained a search warrant and
conducted a search of the home based on the information provided by Ms. Fink.
On 12 May 2014, a grand jury indicted defendant for one count of robbery with
a dangerous weapon. The State alleged that on 15 January 2014, defendant robbed
a Game Stop store and threatened to use a firearm against an employee, Robert
Cintron, in the commission of the robbery. Although Mr. Cintron had failed to
identify any alleged perpetrator in a photographic lineup shown to him two days after
the robbery, he later identified defendant when shown a single still-frame photograph
obtained from the store’s surveillance video. Mr. Cintron then identified defendant
as the perpetrator in the same photographic lineup shown to him two days after the
robbery and again in four close-up, post-arrest photographs of defendant showing his
neck tattoos.
Prior to trial, defendant filed a motion to suppress evidence obtained from the
search of his home “because valid consent was not obtained” for the officers’ initial
entry into the home, and because the subsequent search warrant “was issued without
probable cause and was invalid to authorize the search.” Defendant also filed a
motion to suppress both in-court and out-of-court identification by Mr. Cintron “of the
defendant . . . as the person that robbed the Game Stop, because the out[-]of[-]court
identification was so unnecessarily suggestive as to create a substantial likelihood of
irreparable misidentification and any in-court identification would not be
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Opinion of the Court
independent in origin from the impermissible out-of-court identification.” After a
hearing in which Officer Saine, Officer Francisco, defendant, and Mr. Cintron
testified, the trial court denied defendant’s two motions in written orders entered 20
April 2017.
On 6 October 2017, defendant pled guilty to robbery with a dangerous weapon
pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), as well as a
plea agreement that preserved his right to appeal the trial court’s denial of his
motions to suppress. This appeal followed.
II. Discussion
Our review of a trial court’s denial of a motion to suppress is “strictly limited
to determining whether the trial judge’s underlying findings of fact are supported by
competent evidence, in which event they are conclusively binding on appeal, and
whether those factual findings in turn support the judge’s ultimate conclusions of
law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted).
We review the trial court’s conclusions of law de novo. State v. Hughes, 353 N.C. 200,
208, 539 S.E.2d 625, 631 (2000).
A. Motion to Suppress Evidence Obtained from Search
Defendant first contends the trial court erred in denying his motion to suppress
evidence discovered in the search of his home “because it was obtained in violation of
his constitutional rights to be free from unreasonable searches and seizures.”
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Opinion of the Court
According to defendant, the officers’ initial entry into the home was illegal; thus, the
fruits of the subsequent search should have been suppressed. We disagree.
Defendant relies primarily on the United States Supreme Court’s holding in
Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006), to support his argument
that the officers were not justified in their initial entry into his home. In Randolph,
officers asked a married couple for permission to search their marital residence; one
spouse refused permission, while the other spouse consented to the search. Id. at
107, 126 S. Ct. at 1519. The non-consenting spouse was later charged with possession
of cocaine based on evidence the officers obtained during their search. Id. at 10708,
126 S. Ct. at 151920. At trial, the non-consenting spouse moved to suppress the
evidence as a “product[ ] of a warrantless search of his house unauthorized by his
wife’s consent over his express refusal.” Id. The trial court denied the defendant’s
motion to suppress, holding that the consenting spouse “had common authority to
consent to the search.” Id. The Supreme Court disagreed, holding that “one occupant
may [not] give law enforcement effective consent to search shared premises, as
against a co-tenant who is present and states a refusal to permit the search.” Id. at
108, 126 S. Ct. at 1520.
In response to defendant’s argument, the State contends that Randolph is
inapposite here for the reasons set forth in Fernandez v. California, 571 U.S. 292, 134
S. Ct. 1126 (2014). The Supreme Court refined Randolph in Fernandez, emphasizing
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Opinion of the Court
that Randolph’s “holding was limited to situations in which the objecting occupant is
physically present” and refusing to extend that holding “to the very different situation
in [Fernandez], where consent was provided by an abused woman well after her male
partner had been removed from the apartment they shared.” Fernandez, 571 U.S. at
294, 134 S. Ct. at 1130. We likewise conclude that Randolph’s holding does not
extend to the facts of the instant case.
Here, the trial court made the following findings of fact in its order denying
defendant’s motion to suppress evidence obtained from the search of his home:
4. In order to fulfill their policy of separating the parties in
domestic calls, Officer Saine stayed on the front steps with
the defendant, and Officer Francisco was authorized by
Miss Fink to enter the residence, where he conducted his
original domestic disturbance interview of Miss Fink.

7. During Officer Francisco’s investigation in the home
with Miss Fink, the defendant was outside on the front
steps with Officer Saine.
8. Although the defendant indicated that he wanted to be
in the residence while any officers were in the residence,
the defendant never expressly refused permission of the
officers to enter the residence themselves.
9. Officers did not conduct a warrantless search, but were
simply shown evidence items by Miss Fink in support of
her suspicion that the defendant committed the robbery,
which had been the subject of the domestic altercation.
10. On the basis of the display of these items of possible
evidence, the officers subsequently obtained a search
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Opinion of the Court
warrant and conducted a search of the residence per search
warrant duly obtained.

14. Neither Officer Saine nor Francisco were sure if the
defendant asked other officers who arrived later in the
scene not to enter the residence, but the Court finds
specifically, based on the totality of the circumstances, that
in point of time [sic], had the defendant requested the later
arriving officers not to enter the residence, this would have
been after Kristy Fink had already told Francisco what she
suspected about the robbery and after she had already
displayed the potential robbery evidence to them.

17. The defendant testified at the hearing and stated that
Miss Fink had told him that she and Whitney, a friend
[who defendant suspected as the 9-1-1 caller], had
discussed Miss Fink’s suspicion that the defendant had
robbed the store in question.
Based on its findings of fact, the trial court concluded as a matter of law:
4. The police in this matter did not conduct a warrantless
search of the residence, but were simply shown certain
items of evidence of the robbery of a particular video game
store possibly perpetrated by the defendant.
5. The defendant never expressly refused Officers Saine or
Francisco to enter into the residence. He only indicated his
desire to be present inside if and when the officers were
inside the residence.
6. Miss Fink’s statements to Officers Francisco and Saine
during the initial domestic investigation, which concerned
possible implication of the defendant in a particular
robbery, provided probable cause to them to obtain a search
warrant and to arrest the defendant for the robbery.
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Opinion of the Court
[7]. These items of evidence displayed by Miss Fink to
Officer Saine and Officer Francisco are not fruits of the
poisonous tree and, therefore, are admissible.
[8]. Neither the defendant’s constitutional nor statutory
rights were violated herein.
Defendant specifically challenges finding no. 8 and conclusion no. 5that
defendant never objected to the officers entering his homeas “legally erroneous
because [defendant] was tricked into believing the officers were not there to search
his residence for evidence of crimes other than domestic violence.” Defendant
similarly challenges finding no. 9 and conclusion no. 4that officers did not conduct
a warrantless search of the residence. He asserts that “Officer Francisco’s entry into
the residence under the subterfuge of investigating a domestic violence complaint
followed by his participation in a private search of [defendant’s] bedroom and
nightstand for evidence of a robbery was a warrantless search within the meaning of
the Fourth Amendment.” We disagree.
The trial court’s finding and conclusion that defendant never objected to the
officers entering his home is supported by Officer Saine’s testimony that although
defendant appeared “reluctant to stay outside” and “wanted to go back inside,”
defendant “did not state officers could not be in his residence.” Like Fernandez, this
is a very different situation from the one in Randolph, which involved a co-tenant
“standing at the door and expressly refusing consent.” Randolph, 547 U.S. at 119,
126 S. Ct. at 1526. Moreover, defendant’s contention that the officers’ entry into the
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Opinion of the Court
home to investigate the allegations of domestic violence was a mere subterfuge to
investigate the robbery is meritless. The evidence shows that the officers were
dispatched to the home in response to a 9-1-1 call reporting an incident of domestic
violence. When they arrived at the home, the officers separated the parties pursuant
to CMPD policy, and Ms. Fink corroborated the information provided by the 9-1-1
caller. Finally, the evidence supports the trial court’s finding and conclusion that
officers did not participate in a warrantless search, where Ms. Fink simply showed
the officers items she had discovered prior to their arrival at the home. Cf. State v.
Kornegay, 313 N.C. 1, 10, 326 S.E.2d 881, 890 (1985) (“Mere acceptance by the
government of materials obtained in a private search is not a seizure so long as the
materials are voluntarily relinquished to the government.”). As defendant’s
contention that the subsequent search warrant was issued without probable cause
and was thus invalid to authorize the search assumes that the officers’ initial entry
into the home and gathering of information was unlawful, this argument is likewise
overruled.
Because the trial court’s findings of fact are supported by at least some
competent evidence, and because those findings in turn support the trial court’s
conclusions of law, we hold that the trial court properly denied defendant’s motion to
suppress evidence obtained from the search of his home.
B. Motion to Suppress Identification Evidence
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Opinion of the Court
In his second and final argument on appeal, defendant contends the trial court
erred in denying his motion to suppress identification evidence “because the State
conducted an impermissibly suggestive pretrial identification procedure that created
a substantial likelihood of misidentification and violated [defendant’s] right to due
process.” We disagree.
Here, the trial court made the following findings of fact in its order denying
defendant’s motion to suppress in-court and out-of-court identification evidence:
1. That on January 17, 2014, defendant was arrested for
robbery of the GameStop store on January 15th, 2014. The
alleged victim was shown six separate photos in a photo
lineup on January 17, 2014, which was conducted
substantially pursuant to procedures outlined in the
statutes and the CMPD policies. However, the alleged
victim failed to identify the defendant or any other alleged
perpetrator during that photo lineup.
2. On February 18, 2015, in the course of trial preparation,
the then assistant district attorney and two officers who
had arrived at the scene of the alleged robbery on January
15, 2014, showed the alleged victim a single color photo,
which is asserted by the affidavit of the defendant’s
counsel, upon information believed to be a single photo of
one of the frames from the surveillance video, which the
witness, that is, the alleged victim, identified as the
defendant. This was the first time that the alleged victim
identified the defendant. Thereupon, the alleged victim
was shown the same or similar group of photos as the
original photo lineup of January 17, 2014 and he identified
the defendant as the perpetrator who was Number 3 in the
course of that photo examination.
3. On March 21, 2017, again in trial preparation, the then
assistant district attorney met with the alleged victim and
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Opinion of the Court
showed multiple notes, which included four close-up post-
arrest photos of the defendant showing his neck tattoos,
and the victim again identified the defendant in the four
photos as the alleged perpetrator.

6. . . . [T]he alleged victim asserted that he could identify
the defendant in the photo from the “creases in his forehead
and tattoos.”
7. The statutory and CMPD policy rules were primarily
followed with some deviation in the photo lineups in this
case, with the January 17, 2014, photo lineup almost
precisely following the statutory and CMPD policy
requirements.
8. The substance of any deviation from the statutory
requirements and the CMPD policies revolved around the
defendant’s tattoos, and once the victim was shown closeup
photos of defendant’s tattoos, he made the identification in
the matter.
Based on its findings of fact, the trial court concluded as a matter of law:
1. The authorities substantially followed statutory and
CMPD policies in each photo lineup.
2. Any deviation was principally the result of earlier photos
not portraying with sufficient clarity the defendant’s
tattoos, which the victim had observed at the alleged
robbery.
3. This issue is why a less suggestive process could not be
used and was not used, which would have comported more
precisely with CMPD policy and the statute.
4. The totality of the facts and circumstances surrounding
the question of any in-court or out-of-court identification of
the defendant by the alleged victim is not unduly or
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Opinion of the Court
impermissibly suggestive, and no less suggestive procedure
could reasonably have been used by the authorities.
5. The procedures used by the authorities herein in regards
to the identification question of the defendant did not give
rise to a substantial likelihood that this defendant was
mistakenly identified as the perpetrator allegedly in this
case.
Defendant specifically challenges finding nos. 7 and 8 as well as conclusion no.
4that the authorities substantially followed statutory and CMPD policies in each
photo lineup, and that the substance of any deviation from those policies revolved
around defendant’s tattoos. He contends that “[t]he problem with that reasoning is
that it assumes the police had their man and they merely needed confirmation from
the witness.” According to defendant, “[w]hen the assistant district attorney showed
Mr. Cintron a single, color photo of Mr. Mitchell, he essentially told Mr. Cintron, ‘This
is the guy we think robbed the Game Stop store.’ . . . . Such a procedure was
inherently suggestive.” Defendant ultimately challenges conclusion no. 5that the
procedures used by the authorities “did not give rise to a substantial likelihood that
this defendant was mistakenly identified as the perpetrator.” We disagree with
defendant’s argument.
A “show-up” identification is the practice of “showing suspects singly to persons
for the purpose of identification, and not as part of a lineup[.]” State v. Oliver, 302
N.C. 28, 44, 274 S.E.2d 183, 194 (1981) (quotation marks omitted). As the State
emphasizes here, the suggestive nature of show-ups is not fatal to their admissibility
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Opinion of the Court
at trial. See State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982) (“Pretrial
show-up identifications . . . , even though suggestive and unnecessary, are not per
se violative of a defendant’s due process rights.”). Rather, “[a]n unnecessarily
suggestive show-up identification does not create a substantial likelihood of
misidentification where under the totality of the circumstances surrounding the
crime, the identification possesses sufficient aspects of reliability.” Id. (citing Manson
v. Brathwaite, 432 U.S. 98, 106, 97 S. Ct. 2243, 2248 (1977)).
Here, trial court’s challenged findings and conclusionthat the authorities
substantially followed statutory and CMPD policies in each photo lineup and that the
substance of any deviation from those policies revolved around defendant’s neck
tattoosare supported by the evidence. Defendant fit Mr. Cintron’s initial
description of the perpetrator, which emphasized “a neck tattoo of an Asian symbol
on the left side of his neck” as well as the “lining” or notable creases in the
perpetrator’s forehead. Based on this description, Mr. Cintron had the ability to
identify defendant both in-court and in photographs reflecting a close-up view of
defendant’s tattoos, and he specifically testified to his ability to recognize defendant
as the perpetrator “independent of any lineup . . . or any photo” he had been shown.
Thus, the trial court’s ultimate conclusionthat the procedures used by the
authorities did not give rise to a substantial likelihood that defendant was mistakenly
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Opinion of the Court
identified as the perpetratoris supported by the totality of the circumstances
indicating that the identification was sufficiently reliable.
Because the totality of the circumstances supported the reliability of Mr.
Cintron’s in-court and out-of-court identification of defendant, we hold that the trial
court properly denied defendant’s motion to suppress identification evidence.
III. Conclusion
Where officers did not conduct a warrantless search of defendant’s home, and
where the identification of defendant by the robbery victim was sufficiently reliable,
the trial court properly denied defendant’s motions to suppress.
AFFIRMED.
Judges DILLON and DAVIS concur.
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